RESOLUTION CALLING A COUNTYWIDE SPECIAL ELECTION IN MIAMI-DADE COUNTY, FLORIDA, TO BE HELD IN CONJUNCTION WITH A GENERAL ELECTION ON TUESDAY, NOVEMBER 6, 2012, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORS OF MIAMI-DADE COUNTY THE QUESTION OF WHETHER TO AMEND THE HOME RULE CHARTER TO EXTEND THE TIME TO CONDUCT AN ELECTION TO FILL A MAYORAL OR COMMISSIONER VACANCY, TO PROVIDE A TIMEFRAME FOR QUALIFICATION AND ANY NECESSARY RUNOFF AND TO TEMPORARILY TRANSFER, DURING A MAYORAL VACANCY, CERTAIN MAYORAL POWERS (SEE ORIGINAL ITEM UNDER FILE NO. 121498)

Indexes:

CHARTER AMENDMENT

Sponsors:

Sally A. Heyman, Prime Sponsor

Sunset Provision:
No

Effective Date:

Expiration Date:

Registered Lobbyist:

None Listed

Legislative History

Acting Body

Date

Agenda Item

Action

Sent To

Due Date

Returned

Pass/Fail

County Attorney

8/24/2012

Assigned

Jess M. McCarty

Board of County Commissioners

8/23/2012

10A8 ALTERNATE No. 2 AMENDED

Adopted as amended

P

REPORT:

Commissioner Heyman noted this item pertained to mayoral vacancies, and at the request of the Clerk of the Courts, it replaced the Clerk by the BCC Chair, or Vice Chair, or a commissioner chosen by the Commission members.
It was moved by Commissioner Heyman that Agenda Item 10A8 Alternate 2 be adopted, as presented. This motion was seconded by Commissioner Sosa, followed by discussion.
Commissioner Bovo noted he supported the item, and asked whether it would it be wise to ask the person filling in to serve until the next election if a mayoral position was vacated.
Commissioner Heyman said that the item did not call for a special election and only addressed succession; therefore, no election would be necessary to replace the Mayor.
Assistant County Attorney Oren Rosenthal indicated that this item only addressed the gap between the time when the vacancy occurred until it was filled pursuant to Section 1.07 of the Charter. That section allows such a vacancy to be filled by election or by BCC appointment.
Commissioner Bovo explained that in the City of Hialeah, if a mayoral vacancy occurred, the City Council President would become the Mayor and serve until the next election, which saved the cost of organizing a special election.
Commissioner Diaz pointed out that the specific question which the Commission members were considering today was who would fill the mayoral vacancy.
Commissioner Heyman asked the Assistant County Attorney whether Commissioner Bovo’s suggestion could be addressed by ordinance.
Assistant County Attorney Rosenthal indicated that Commissioner Bovo’s suggestion would require a Charter amendment.
Commissioner Heyman noted the item under discussion only addressed the succession in case of a mayoral vacancy. However, she said that Commissioner Bovo raised an important issue, and if it could only be addressed through a Charter amendment, perhaps it would be better to consolidate both issues into one item before making a decision.
Mayor Gimenez noted the Commission always had the right to name a Mayor. He said that the problem arose when the Commission members decided not to name a Mayor but to have an election instead, and during the time that the election is organized, there is a mayoral vacancy. He explained that it was only possible to fill this vacancy pursuant to the Charter, because a number of mayoral duties and powers were granted by this proposal. He pointed out that if the Commission members decided to appoint the BCC Chair or Vice Chair as Mayor, he/she would have all of the mayoral powers.
Commissioner Jordan noted she concurred with the Mayor that this item was unnecessary, because the Commission already had the authority to fill a mayoral vacancy. However, the Commission chose not to exercise this authority, but rather to have a Mayor appointed pursuant to an election. She asked whether it was possible for the Commission members to pass an ordinance outlining the process to follow in the event the Mayor was incapacitated.
Assistant County Attorney Rosenthal noted this would not be possible because some of the Mayor’s powers were granted by the Charter. Therefore, this would require a Charter amendment, and the most efficient way to do this would be to amend the present item to include incapacity, he advised. Assistant County Attorney Rosenthal explained that Section 1.07 of the Charter provides that in the event the Board appoints a Mayor, the appointment would only be valid until the next countywide election.
Commissioner Jordan asked Assistant County Attorney Rosenthal whether it would be possible for him to amend the item’s language to include incapacitation.
Chairman Martinez asked the County Attorney to list the powers that are to be exercised exclusively by the Mayor according to the Charter.
County Attorney Cuevas indicated that he recently wrote a memorandum listing these powers, and asked his staff to obtain a copy.
Commissioner Monestime said that he was in favor of filling the vacancy until the next election to provide stability. He noted this was done in various other areas of government; for example, the Lieutenant Governor filled in if the Office of the Governor became vacant.
County Attorney Cuevas referred to the memorandum which he wrote on the subject of non delegable mayoral powers and responsibilities that cannot be exercised by others during a vacancy in the Office of the Mayor. He said these included: appointment and dismissal of the County Manager, appointment and dismissal of department directors, veto of legislative quasi-judicial zoning master plan or land use decisions of the County Commission including the budget, preparation and delivery of an annual report on the state of the County, budgetary address, preparation of a proposed budget, written recommendations required for waiver of competitive bidding, establishment of departments by administrative orders, and issuance of administrative orders, rules and regulations.
Chairman Martinez asked the Assistant County Attorney to clarify Section 2.03 of the item, which seemed to indicate that the person who filled the vacancy would not qualify to run for the position of Mayor.
Assistant County Attorney Rosenthal confirmed that the person who was filling in for the Mayor would not qualify to run in an election to fill the vacancy.
Chairman Martinez asked why punish the person for taking on added responsibility.
Commissioner Heyman noted her intent in putting forth Agenda Item 10A8 Alternate 2 was to remove the Clerk of the Courts. She said she believed that it was important to have a discussion regarding the hierarchy for succession purposes in the event of a mayoral vacancy; and the discussion revealed that it was also important to add a process in the event of mayoral incapacity. She indicated that she would be willing to accept an amendment on the point raised by Chairman Martinez.
Chairman Martinez suggested that Section 2.03 of the item be removed. He also recommended that a definition of the term incapacitated be provided.
Commissioner Heyman noted she agreed with Chairman Martinez’ suggestion regarding Section 2.03 of the item. She asked the Assistant County Attorney to provide a definition of the term incapacitated.
Assistant County Attorney Rosenthal noted pursuant to the request of the sponsor he was intending to draft an ordinance which would define incapacity by including all possible types of incapacity. He advised that this would make it clear when the incapacity was over and when the powers and responsibilities could be restored to the incumbent Mayor.
Mayor Gimenez noted he was opposed to having the Commission determine when he was incapacitated. He said that he should be considered to be incapacitated when he was physically unable to perform his duties.
Chairman Martinez pointed out that this was why he asked the Assistant County Attorney to provide the legal definition of the term incapacitated.
Assistant County Attorney Rosenthal said if the Commission members wanted to include a definition of incapacitated, the County Attorneys would research an appropriate definition. He cautioned the Commission members, however, that they were as wide ranging as can be imagined, and included physical as well as mental incapacity. He said that he could work with the sponsor on an appropriate definition, which he could present at the end of the meeting.
Later in the meeting, Assistant County Attorney Rosenthal reminded the Commission members that he had been asked to find a definition for the term “incapacity”. He asked the sponsor of the item whether she would proceed with Alternate 2 as it was originally drafted, or whether she wished to amend it to add the eventuality of incapacitation.
Commissioner Heyman noted the term incapacitated had never been defined, and it could be defined at a later time by ordinance. She explained that currently the law provided that if an official was incapacitated, another member of that department could fill in, and usually it was the deputy. However, the law was silent on what would happen in the event of a vacancy; as this was a pressing issue, Commissioner Heyman said that she would proceed with Alternate 2 as it was originally drafted, and wait until the Commission members defined incapacity to present another item dealing with that issue.
Chairman Martinez pointed out that the powers of a department director and those of the Mayor were completely different because the Mayor exercised powers that were granted by the Charter.
Commissioner Jordan noted she concurred with Chairman Martinez that the powers of a department director could not be compared with those of the Mayor. She suggested that the Commission proceed with including the word incapacity, noting at least it would be in the Charter. She said that at a later time, the Commission members could agree on a definition that was acceptable to everyone.
Commissioner Heyman indicated that she was willing to accept this amendment with an understanding that the term “incapacity” would be defined at a later date.
Assistant County Rosenthal advised that a provision could be included in the item stating “upon a vacancy or incapacity as set forth by ordinance”, and at a later time the term could be defined by ordinance.
Commissioner Heyman said that it was important to have a proper succession process in place to carry out County business.
It was moved by Commissioner Heyman that the foregoing proposed resolution be adopted as amended to add language that would temporarily transfer certain Mayoral powers if the County Mayor was incapacitated, and to remove language that would prohibit the person filling the temporary vacancy from being elected Mayor. This motion was seconded by Commissioner Jordan, and upon being put to a vote, passed by a vote of 11-0 (Commissioner Suarez and Chairman Martinez were absent).
Assistant County Attorney Rosenthal advised that the ballot language for Agenda Item 10A8 Alternate 2 would need to be modified to be consistent with the amendment which he just read.
Chairman Martinez noted a number of people had complained about the poor quality of the translations of the ballot language. He asked the County Attorneys to inform the Commission members before publishing the ballots to give them the opportunity to explain the questions.
Assistant County Attorney Rosenthal indicated that the Supervisor of Elections was responsible for the translations of the ballot questions; therefore, Chairman Martinez could request a copy of the translations when they were completed.
Chairman Martinez asked Mayor Gimenez to ensure that the Supervisor of Elections provided each Commission member with a copy of the translated ballot questions as soon as possible.
.

Legislative Text

TITLE

RESOLUTION CALLING A COUNTYWIDE SPECIAL ELECTION IN MIAMI-DADE COUNTY, FLORIDA, TO BE HELD IN CONJUNCTION WITH A GENERAL ELECTION ON TUESDAY, NOVEMBER 6, 2012, FOR THE PURPOSE OF SUBMITTING TO THE ELECTORS OF MIAMI-DADE COUNTY THE QUESTION OF WHETHER TO AMEND THE HOME RULE CHARTER TO EXTEND THE TIME TO CONDUCT AN ELECTION TO FILL A MAYORAL OR COMMISSIONER VACANCY, TO PROVIDE A TIMEFRAME FOR QUALIFICATION AND ANY NECESSARY RUNOFF AND TO TEMPORARILY TRANSFER, DURING A MAYORAL VACANCY, CERTAIN MAYORAL POWERS

BODY

WHEREAS, The Board of County Commissioners pursuant to Section 9.07 of the Miami-Dade County Home Rule Charter desires to place the attached Charter amendment before the electors of Miami-Dade County on the November 6, 2012 General Election ballot,
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI-DADE COUNTY, FLORIDA, that:
Section 1. A countywide special election is hereby called and shall be held in MiamiDade County, Florida in conjunction with a General Election on Tuesday, November 6, 2012, for the purpose of submitting to the qualified electors of Miami-Dade County the proposal for amendment to the Home Rule Charter in the form attached hereto and made a part hereof.
Section 2. Notice of such election shall be published in accordance with Section 100.342, Florida Statutes.
Section 3. The result of such election shall be determined by a majority of the qualified electors of Miami-Dade County voting upon the proposal. The polls at such election shall be open from 7:00 a.m. until 7:00 p.m. on the day of such election. All qualified electors of Miami-Dade County, Florida shall be entitled to vote at said election. The County registration books shall remain open at the Office of the Miami-Dade County Supervisor of Elections until twenty-nine (29) days prior to the date of such election, at which time the registration books will close in accordance with the provisions of general election laws. The question shall appear on the ballot in substantially the following form:
CHARTER AMENDMENT
RELATED TO OPTION FOR FILLING MAYORAL OR COUNTY COMMISSIONER VACANCY

SHALL THE CHARTER BE AMENDED TO:

* EXTEND THE TIME TO CONDUCT AN ELECTION TO FILL A MAYORAL OR COMMISSIONER VACANCY FROM 45 TO 90 DAYS FROM THE DECISION TO CALL SUCH ELECTION AND PROVIDE A TIMEFRAME FOR QUALIFICATION AND ANY NECESSARY RUNOFF;

* TEMPORARILY TRANSFER, DURING A MAYORAL VACANCY OR INCAPACITY, CERTAIN MAYORAL POWERS TO THE COMMISSION CHAIRPERSON VICE CHAIRPERSON OR COMMISSIONER CHOSEN BY THE BOARD?

YES
NO

Section 4. The form of the ballot shall be in accordance with the requirements of general election laws.

Section 5. Early voting shall be conducted in accordance with the requirements of general election laws.
Section 6. Absentee paper ballots may be used by qualified electors of Miami-Dade County for voting on this question. The form of such absentee ballot shall be in accordance with the requirements prescribed by general election laws.
Section 7. A sample ballot showing the manner in which the question or proposal aforesaid will appear at this election shall be published and provided in accordance with the applicable provisions of general election laws.
Section 8. This special election on the proposal aforesaid shall be held and conducted in accordance with applicable provisions of the general laws relating to elections and the provisions of the Miami-Dade County Home Rule Charter. The County Mayor or his or her designee, the Finance Director, and the Clerk of the County Commission are hereby authorized and directed to take all appropriate actions necessary to carry into effect and accomplish the provisions of this resolution. This election shall be a nonpartisan election. Election officials in connection with this election shall be appointed in accordance with the provisions of general election laws.
Section 9. This election shall be canvassed by the County Canvassing Board, in accordance with the provisions of Section 3.07 of the Home Rule Charter.

OTHER

MIAMI-DADE COUNTY HOME RULE CHARTER

ARTICLE-11

BOARD OF COUNTY COMMISSIONERS

* * *

Section 1.07. VACANCIES.

Any vacancy in the office of Mayor or the members of the Board shall be filled by majority vote of the remaining members of the Board within 30 days, or the Board shall call an election to be held not more than [[45]] >>90<< days thereafter to fill the vacancy. >>The qualification period for such election shall be the first 10 days after the call of the election and any runoff election shall be held within 30 days of the certification of election results requiring a runoff.<< The person chosen to fill the office vacated must at the time of appointment meet the residence requirements for the office to which such person is appointed. A person appointed shall serve only until the next county-wide election. A person elected shall serve for the remainder of the unexpired term of office. If a majority of the members of the Board should become appointed rather than elected to office, then the Board shall call an election to be held not more than [[45]] >>90<< days thereafter to permit the registered electors to elect commissioners to succeed the appointed commissioners; appointed commissioners may succeed themselves unless otherwise prohibited by the Charter. >>The qualification period for such election shall be the first 10 days after the call of the election and any runoff election shall be held within 30 days of the certification of election results requiring a runoff.<< If a county-wide election is scheduled to be held within 180 days from the date on which the majority of the members of the Board become appointive, the Board may elect to defer the required election until the scheduled county-wide election.

* * *
ARTICLE-2

MAYOR

* * *

>>Section 2.03. TEMPORARY TRANSFER OF MAYORAL POWERS AND RESPONSIBILITIES UPON A VACANCY OR INCAPACITY IN THE OFFICE OF MAYOR.

Upon a vacancy or incapacity in the Office of Mayor and until such time as the vacancy is filled in accordance with Section 1.07 of the Charter or the Mayor is no longer incapacitated, the powers and responsibilities vested by this Charter in the Office of Mayor to head the County for emergency management purposes, to hire department directors and to recommend waivers of competitive bidding shall be temporarily vested in the Office of the Chairperson of the County Commission as supplementary powers and responsibilities of such Office and shall not reside in the Office of Mayor. During such time, if the Chairperson relinquishes such supplemental powers and responsibilities in writing filed with the Clerk of the Board, such supplemental powers shall be vested in the Office of Vice-Chairperson of the County Commission. If the Vice-Chairperson relinquishes such supplemental powers and responsibilities in writing filed with the Clerk of the Board, such supplemental powers shall be vested in a commissioner chosen by a majority of those Board members present. The temporary removal and transfer of powers and responsibilities provided for in this Section shall not be construed to fill the vacancy in the Office of Mayor. Immediately upon filling the vacancy in the Office of Mayor the powers and responsibilities vested in the Office of Mayor shall be as provided in this Charter without regard to this Section. The Board shall by ordinance establish a definition of incapacity in the Office of Mayor for purposes of this Section.<<